Nicoll v. Sweet

Weaver, C. J. McNulty was injured by the falling of a cornice into the public street from a building owned by Sweet. Eight days after the accident, McNulty died of pneumonia, which plaintiff alleges was caused by the injuries so received, and the claim of damages is based upon that theory. 1. Negligent death : cause of death : evidence. It' is strongly contended upon the part of the appellant that the record shows no evidence from which this fact could be found in favor of plaintiff. It is true that the testimony tends to show that McNulty was not in r°kust health at the time of his injury, that he had recently suffered from bronchitis and had some indications of weakness of the lungs; but the *685 fact of ill health or physical weakness, if established or conceded, is by no means inconsistent with plaintiff’s theory that the pneumonia which was the immediate cause of death was the direct result of the blow received from the falling brick. Indeed, such weakened condition, if it existed, may have rendered the deceased an easier victim of the fatal disease; yet if there was evidence for the jury that pneumonia was the direct result of the injury, and such injury was fairly chargeable to the negligence of Sweet, the state of the deceased’s health would in no manner affect the right of action on the part of his administratrix, though it may have bearing on the amount of the recovery. That there was evidence to go to the jury on both questions is scarcely open to doubt. On the matter of the alleged negligence, the fall of the cornice doubtless presented a case for applying the doctrine of res ipsa loquitur, to say nothing of other evidence bearing upon the situation. Concerning the relation of cause and effect between the injury received and the disease of which the intestate died, it may be said that the medical testimony on the part of plaintiff tended to show that the pneumonia was of traumatic origin; that is, pneumonia, the inciting cause of which was some physical violence or bodily injury. It is also shown that, from such an injury as the deceased suffered, pneumonia is likely to follow as a natural consequence. No other injury or efficient cause for the disease is suggested, and the question thus presented is one of fact and not of law. Brownfield v. Railroad Co., 107 Iowa, 254; Lehman v. Railroad Co., 153 Iowa, 124. 2. same • instruction- The jury was fairly and correctly instructed upon this proposition. The defendant’s request for an instruction that burden was upon the plaintiff to show that the injuries to McNulty did cause pneumonia, and if she failed in this respect she could not recover, stated a correct legal proposition, but it was fully covered and stated in the instructions which the court gave upon its own motion. *686 3 same • negligent dence- • dependent children. The principal debatablé question upon this appeal is the following: The surviving wife of McNulty, testifying as a witness, was permitted to say, over the objection of defendant, deceased left a family consisting of a wli'e and four children ranging from one to ten years of age. Referring to this feature of the evidence, the court told the jury that, if they found the plaintiff entitled to recover, the amount of damage to be assessed in favor of the estate of the deceased “is not to be increased by reason of his having children which he left surviving him; evidence of his children and the number thereof being admitted by the court as having bearing upon the question of inducement- or incentive to habits of industry in case the deceased had lived.” Error is assigned upon the admission of the testimony and upon the instruction to which we have referred. It is to be admitted that'authority is to be found for the position of the appellant, and cases are not wanting in which recoveries in actions for damages sustained by reason of the death of a person have been set aside because of admission of proof that the deceased left wife and children surviving him. It is a matter, however, on which the precedents are not in harmony, and a majority of this court, after quite careful deliberation, is of the opinion that the better reason is with the rule holding the evidence competent. Practically the only objection of any plausibility to its admission is that its tendency is to excite the sympathies of the jurors and induce undue liberality in the assessment of damages. But, as is well known to all persons who have observed the course of litigation in matters of this kind, it is utterly futile to hope to keep the fact from 'the knowledge of the jury. More often than otherwise the widow and children are in the courtroom. If not, the facts concerning the victim of a fatal accident, his family, and their circumstances are public property, upon every tongue; they are mentioned in public print, talked about on the street corners and places where men meet and *687 congregate; they crop out incidentally in the courtroom; and, even though the evidence be rigidly excluded on the trial, no juror enters upon the consideration of his verdict in ignorance of the actual situation in this respect. Even as a mere matter of protection of the interests of the defendant, it is at least an open question whether it is not better that the testimony of all these conditions surrounding the deceased at the time of his injury should be admitted under the sanction of an oath and its bearing and effect regulated and controlled by appropriate instructions. If it be said that a juror’s sympathies may control his actions even to the extent of disregarding the court’s instructions, that suggestion, if sound, is no less applicable where the influencing fact comes to the juror’s knowledge from sources other than the testimony or by absorption from the atmosphere in which the case has been tried. But the average jury is not made up of weaklings. Its members as a rule have an intelligent conception of their duties and obligations. It is correct to say, as does the appellant, that the only true measure of recovery for the death of an individual is the value of his life to his estate, had he not come to such untimely end. It is hardly too much to say that this rule is vague, uncertain, and speculative, if not conjectural, but it is the best which judicial wisdom and experience have yet been able to formulate. No evidence is possible of the time which deceased would have lived but for the injury complained of. Had he avoided this injury, death may have met him the next day, week, or year in some other form. In business he might have become a phenomenal success and accumulated millions, or. he might have lived to old age and died a pauper. From being a man of good habits and prudence and industry, he might have become á spendthrift or a tramp, or if a man of dissolute habits he might have reformed into an efficient and prosperous citizen. But the demands of justice will not tolerate the idea that human life may be extinguished by the tort of another without the wrongdoer being held to answer *688 therefor in damages, and the rule we have stated is the one which has been devised for this purpose. The principle which underlies it is of unquestionable soundness, but the difficulty which besets its practical application is in the fact that it calls for an estimate or conclusion which must be arrived at by a balancing of mere probabilities and possibilities which we deduce by way of inference from the age, character, habits, condition, education, employment, surroundings, and apparent capacity of the deceased. Fairness to the beneficiaries of the estate on the one hand and of the defendant on the other require that the jury be put in possession of all the facts having the slightest legitimate bearing upon this intricate problem. It is concededly the law of this state that in such case the plaintiff may show that the deceased was a married man. Wheelan v. Railroad Co., 85 Iowa, 178. This is said to be competent because “it may fairly be assumed that a married man will be more frugal and industrious and hence will accumulate a larger estate than a single man.” Beems v. Railroad Co., 58 Iowa, 158. In Donaldson v. Railroad Co., 18 Iowa, 290, the question presented in the case now before us was raised in the following manner. The action like the one at bar was brought by the administrator to recover damages for the death of his intestate. Plaintiff offered testimony showing the family of the deceased and their respective ages, as well as his occupation, earnings, and accumulations. The defendant objected thereto on the ground that the inquiries were improper, immaterial, and not the correct method for the ascertainment of the damages. The trial court instructed the jury that, if plaintiff was found entitled to recover, he would be entitled to recover such damages as the estate of deceased had suffered by reason of his death, and nothing should be allowed on account of his pain and suffering before death or for the grief and distress of the family or for their loss of his society. Passing upon the defendant’s assignment of error in this respect, this court then said: “When a jury is thus guarded *689 against the allowance of damages for improper causes, it would seem that no prejudice would result if the jury should be fully advised of the exact situation of the deceased, his occupation, annual earnings, age, health, habits, family, and estate. Many of these, and possibly other facts, may have just influence in determining the pecuniary damage to the estate. We would not be understood, however, as determining that evidence as to the number and ages of his children is strictly proper.” It would seem from this quotation that, while the statement of facts and argument indulged in by the court indicated its view that the testimony was admissible, yet, as in any event its admission was not prejudicial, the question whether it was technically or “strictly proper” was left undecided. In the later case of Beems v. Railroad Co., 58 Iowa, 150, three members of the court held to the view that such evidence was inadmissible, while the other two, Beck and Roth-rock, JJ., reached the opposite conclusion. Somewhat singularly the Donaldson case was not referred to and was apparently overlooked. Indeed, there was no discussion of authorities except a brief mention of Simmonson v. Railroad Co., 49 Iowa, 87, where it was held generally that the jury was entitled to know all the circumstances surrounding the deceased affecting his capacity and disposition for earning a living. Since that time the Beems case has been cited in a criminal ease (State v. Rutledge, 135 Iowa, 581) and a bastardy case (State v. Wangler, 151 Iowa, 555), but under circumstances so foreign to those with which we are now dealing that they cannot be said to be in point. As applied to the question before us, we think it must be said that the authority of that precedent has not only been discredited but abandoned. Bearing upon that proposition, let us first notice that in Hunt v. Railroad Co., 26 Iowa, 363, Simmonson v. Railroad Co., 49 Iowa, 87, and Moore v. Railroad Co., 47 Iowa, 692, we held it competent for the plaintiff in- a personal injury case *690 to prove that the injured person was a poor man and had a family dependent upon him for support. In the Simmonson case it was said: “The jury was entitled to see the deceased as he was viewed with reference to his prospective capacity and disposition for earning and saving money. No data could be given them for a computation. Taking deceased as he was shown to them, it was for them to say, from their knowledge of business life and all its contingencies, . . . what was the pecuniary injury sustained . . . with reference to his prospective estate.” In this connection it is further said that either party might have shown his habits in regard to the use of intoxicating liquor “and in regard to anything else which affected his prospective savings and earnings. ’ ’ In Stafford v. Oskaloosa, 64 Iowa, 258, the question was again raised, and, after citing approvingly the Hunt, Moore, and Simmonson cases, the court proceeds to notice the Beems case as follows: “But in the subsequent case of Beems v. Railroad Co., 58 Iowa, 150, it was held by a majority of the court that evidence of the number of the intestate’s family, though offered simply as a circumstance tending to stimulate his industry and economy, was incompetent. The majority of the court, as now constituted, are now content to adhere to the holding in Hunt v. Railroad Co. and Moore v. Railroad Co., and the grounds on which the holding is placed.” In the later case of Fish v. Railroad Co., 96 Iowa, 707, where question was raised upon the competency of evidence showing accumulations of the deceased, reliance was placed by the defendant upon the Beems case, where the majority seems to class proof of this character with proof of the family relations of the deceased and holds both incompetent. Upon this objection the court again remarks: “All that can be said of that case is that it denies the right of showing accumulations with a view to enhance damages because of it, but the case recognizes the right to show that deceased was dependent on his earnings, and had no money, as a probable inducement *691 to industry. . . . It is not intended by what is said in this opinion to commit this court, as now organized, to an approval or disapproval of the rule of Beems v. Railroad Co., should the question therein as to such evidence hereinafter arise.” In Lowe v. Railroad Co., 89 Iowa, 420, evidence was admitted apparently without question that the deceased was married, left no estate, and that his earnings had been applied to the support of his wife and family; and the court in its opinion cites these facts as circumstances to be considered in estimating the value of his life to his. estate. In the Wheelan case, 85 Iowa, 167, the court cites the Beems ease' in support of the proposition that, in finding the value of the life of a man to his estate, evidence of his age, habits, health, means, business, and his married or single estate is admissible. In Dupree v. Railroad Co., 155 Iowa, 544, the plaintiff having shown the wages earned by the deceased, it was developed on cross-examination that he was saving none of his earnings and had no property. On redirect examination plaintiff was permitted to show that deceased was supporting a wife and three children. The defendant assigned error upon this ruling and cited Beems v. Railroad Co. in support of its position. The authority of that precedent was not discussed by the court, for we held that the evidence was admissible in any event as an explanation of the fact that deceased was not making any savings. It is difficult, however, to understand upon what theory the explanation would be material or pertinent if the rule of the Beems case is sound or if the fact itself has no legitimate bearing on the question of the value of the life of the deceased to his estate. It is evident from the foregoing that this court has never directly or distinctly reaffirmed Beems v. Railroad Co., so far as it relates to this question but, on the contrary, has shown a distinct disinclination to do so, and that taking our cases along this line as a whole, and the reasoning upon *692 which they have been decided, they may fairly be said to affirm the competency of the evidence admitted by the trial court. For reasons already suggested, most of the adjudicated eases from other states are not specially helpful in this discussion, but there are some in which principles quite analogous to those we here approve have been applied. For example, in Perry v. Lansing, 17 Hun, 34, it was held proper to admit such evidence on the theory that it was proper for the jury to be advised in a general way of the situation and condition in life of the party injured. In Missouri, contrary perhaps to the general trend of cases in that state, it was held admissible to show the existence of wife and family, not as in itself a ground of damage, but to inform the jury of the person’s condition and situation in life. Winters v. Railroad, 39 Mo. 468. The state of Alabama has a statute which its courts have so interpreted that, if it appear that the deceased consumed his wages in support of his family and was making no accumu-' lations, the measure of recovery is limited to the loss so occasioned, but, if he was making any savings, then the administrator may recover, as in this state, the entire present value of the estate which the deceased would probably have accumulated had he lived. Railroad Co. v. Jones, 114 Ala. 519 (21 South. 507, 62 Am. St. Rep. 121), and cases there cited. Applying this statute, the court in the cited case says: “As a circumstance aiding the solution of this question, it was competent to show how many and what dependents there were and their ages.” The Nebraska statute is unlike our own in that the right of action is given for injury to the support of dependent relatives, but the reasoning of that court upon the competency of evidence tending to show the extent of such loss is very applicable in cases like the one at bar. There, in an action by a father for the death of a son, the court says that the fact of the existence of a mother and other children was entirely *693 admissible, “not as a direct ground for the jury’s action, but as showing what the deceased was doing and likely to do to make his life pecuniarily valuable to plaintiff. ’ ’ If such fact is evidence of what the deceased was doing or likely to do to make his life of pecuniary value to the parent, it is no less competent to show the pecuniary value of his life to his estate, where the right of recovery is for its benefit. It is held in Wisconsin that in an action by the widow of the deceased or for her benefit, although she is entitled to recover only for the pecuniary damage resulting to herself, she may prove the number and ages of her children. Hamann v. Bridge Co., 136 Wis. 39 (116 N. W. 854). It is to be said also that the precedents from other states relied upon by the appellant holding it incompetent to show the fact that the deceased left a family of children are equally unanimous in holding it improper to show that he was a married man or otherwise show to the jury the facts as to his domestic or family relations. Railroad Co. v. Collinsworth, 45 Fla. 403 (33 South. 513); Stockton v. Frey, 4 Gill (Md.) 406 (45 Am. Dec. 138); Railroad Co. v. Camp, 81 Fed. 808 (26 C. C. A. 626); Sesler v. Coal Co., 51 W. Va. 327 (41 S. E. 216). The majority opinion in the Beems case departs from this rule so far as relates to the married condition of the deceased, and we have committed ourselves to the same view in several cases, as already noted. But it is scarcely possible to conceive of any good reason for admitting proof that defendant had a wife, which does not equally apply to the fact that he had children. In the Beems case both majority and minority justified the admission of the former upon the sufficient ground that “from observation and experience it may fairly be assumed that a married man will be more frugal ancl industrious and hence will accumulate a larger estate than a single man;” but, having said this, the opinion proceeds with palpable disregard of the logic of the situation and of its own concession to hold it improper to show the existence of children and state as a *694 reason therefor that “observation and experience do not teach that one’s income is likely to increase in the same ratio as the number of his children.” It would have been scarcely less pertinent to have said that observation and experience do not show that, other things being equal, a married man lives longer than a single man. It is sufficient, answer to either to say that no one contends otherwise, and the quip with which the competency of the testimony is there turned aside does not partake of the character of argument. If it be true (and it stands admitted in this court) that proof that deceased was a married man is of some probative force in estimating the probable value of his life to his estate because the responsibilities of wedlock tend to stimulate him to industry, prudence, and economy, shall the court shut its eyes to the equally patent fact that a child or children in the family, whether one oy many, has an equal, if not greater, influence in the same direction? It may be said that the dependent members of a man’s household may be so numerous as to exhaust his earnings and decrease rather than increase the likelihood of his accumulating an estate. This is true, and in such case the defense is in no position to complain of the admission of the testimony. The writer has been unable to find that any court in any other jurisdiction has drawn any distinction between the admissibility of proof that the deceased in such eases w'as a married man and proof that he left children. We have already called attention to the peculiar difficulties surrounding the presentation and trial of these cases and to the fact that, when all is said, the issue goes to the jury for what we have called a balancing of the probabilities and possibilities of the extent of that financial success, if any, which would have attended the life of the deceased, had his career not been prematurely arrested by the negligence complained of. We think that no impartial arbitrator, to whom that question might be submitted, would fail to inquire and ascertain, so far as practicable, not only what the deceased had already done or accomplished and the facts as to *695 his age, health, capacity, and earning powers, bnt also as to his exact situation in life and the surroundings and influences, if any, which, according to common knowledge and observation, tend to the development of industry and thrift. It is to be remembered that actions of this nature were unknown to the common law. The right thereto is a creature of statute, and investigation will show that the provisions made in the different states are of such varying character that decisions thereunder afford few precedents of much value except in the jurisdictions where they have been announced. As the action is not of common law origin and the injury to be compensated for involves investigation into matters not before made the subject of judicial inquiry, it is not surprising that the rules of evidence therein should become involved in apparent confusion, though it is to be said that, when we consider the different statutes of the various states, the confusion is perhaps more apparent than real, a situation to which the compilers and annotators of decisions have not always given due attention. The construction and administration of our own statute is of course a matter for our own courts; and, notwithstanding there has been some uncertainty of expression with reference to the proper limitations upon the introduction of evidence, we think we are fairly committed to principles and rules recognizing the materiality and competency of testimony such as we have now under consideration. We also think them fully sustained by sound reasoning and the teachings of human experience. The assignment of error upon the admission of this testimony is therefore overruled. 4 same - instruction- It is next said that the court’s instruction to the jury that the amount of plaintiff’s damage, if any, was not to be increased by reason of the deceased- having left children, and that evidence concerning the -children had been admitted only as bearing upon the question of inducement or incentive to industry in the deceased, is contradictory and misleading. We find nothing in the *696 instruction of which appellant can complain. The attempt of the court to limit the effect of the testimony was favorable to the defense. It said to the jury in effect that the mere fact that the deceased had children who survived him was not in itself a ground for the recovery of damages, but that if the plaintiff was found otherwise entitled to recover it might be considered for what it was worth as bearing upon deceased’s incentives to industry. If we are correct in holding the testimony admissible at all, then the limitation tended to restrict rather than to enlarge the plaintiff’s right of recovery, and defendant has suffered no prejudice. Whether such restriction was called for under the record we need not decide. 5 Same : exclusion of evidence : harmless error. Error is assigned upon the ruling of the court striking out testimony of a statement by the deceased that he could not obtain life insurance because of his health. We think ^he testimony should not have been stricken because it was a circumstance, though one of slight importance, bearing upon his condition of health, and consequently upon his expectancy of' life and ability to labor; but these circumstances and conditions were quite fully inquired into, and we think the exclusion of this particular item was not a prejudicial error. 6. Same : evidence : pain ana suffering. The same may be said of one or two other similar rulings. There was no error in admitting complaints made by the deceased of pain and suffering soon after his injury. It is true the administrator was not entitled to recover for the pain and suffering sustained , ,, , , , „ . by the deceased, and the .jury were so instructed, but the rule which admits the complaints of the injured person as bearing upon the nature, extent, and location of his injuries is quite elementary. Hamilton v. Coal Co., 120 Iowa, 149; 7 Ency. Evidence, 386. *697 7. same: excessive damages. *696 The complaint that the damages allowed ($8,000) are excessive cannot be sustained. The deceased was still a young *697 man, with an expectancy of life of thii’ty-six years. He was a toiler maker earning from $56 to $108 per month; and, while as we have said he was probably not a man of robust health, he was engaged in labor at his trade and, so far as appears, was in no respect incapacitated to pursue the same, and no circumstances are disclosed rendering it necessarily improbable that he would live out his expectancy maintaining the physical efficiency of the average man. ■■ We find no prejudicial error in the record, and the judgment of the district court is Affirmed. Evans, Gaynor, Withrow, and Ladd, JJ., concur.